Air France and Taft-Hartley

By Ronald Sokol

Oct. 8, 2014

AIX-EN-PROVENCE, France — The Air France pilots’ strike may be over, but France’s labor strife is far from resolved. The government seemed helpless as the iconic French carrier bled away 20 million euros a day during the two-week walkout. Though President François Hollande is on record as favoring reform, what exactly could he and his ministers have done to avert the costly shutdown at a time when France is so desperately in need of economic revival?

Unless the French-Dutch airline, now doomed to yet another year of unprofitability, radically overhauls its business model, its plans to make its Transavia subsidiary competitive with Ryanair, easyJet and other low-cost carriers will go nowhere. When management offered Transavia pilots a lower pay scale, Air France pilots rebelled. Prime Minister Manuel Valls ordered them back to work, but in reality his power was limited to what President Lyndon Johnson would have called “jawboning.”

The story is hardly new, certainly not in France, which is among the most strike-prone countries in Europe. In 2008, France lost 1.4 million working days to strikes, compared with just over 131,000 lost in Germany, according to the International Labor Organization, citing its latest available figures. France has no formal legal mechanism for dealing with strikes, such as the National Labor Relations Board or the Federal Mediation and Conciliation Service in the United States.

French leaders might find it profitable to look at the American experience. In 1946 American coal and railroad workers called for national strikes. Those two industries were the most important in the nation. Energy in those days came from coal not oil, and people traveled not by air but by car and train. The strikes had a crippling effect on the economy. President Harry S. Truman finally got the situation under control, but what Clark Clifford, Truman’s special counsel, and others referred to as the “labor wars” led to a new law.

The following year Congress passed the Taft-Hartley Act, which introduced major changes to the National Labor Relations Act adopted during the Great Depression. Of Taft-Hartley’s many provisions, the innovation under Title II of the law could prove useful in reducing the number of work days lost in France.

When the American president deems that a threatened strike will imperil the country’s health or safety, he may appoint a commission to study the issues and report back to him. The government can then ask a federal court to issue an injunction prohibiting the strike for a period of 80 days. If the judge agrees that the good of the nation is imperiled, he issues the injunction. Both management and employees are then required to meet with a federal mediation service. As the 80-day period comes to a close, the employees must vote on management’s most recent offer. If they accept the offer, there is no strike. If they reject it, the government must ask the court to remove the injunction, and the employees are then free to go on strike. The 80-day cooling down provision of the Taft-Hartley Act has been largely successful in avoiding strikes.

France has no similar law. French leaders can “jawbone” recalcitrant parties, as Johnson did; they can mediate if all parties agree. But they cannot compel the parties to sit down together, nor can they postpone a threatened strike that endangers the economy. Although Truman vetoed the Taft-Hartley Act, his veto was overruled by Congress. Subsequently, Truman discovered it was a useful tool and invoked it on numerous occasions.

The need in France for a Taft-Hartley type law is acute because in France everyone goes on strike — lawyers, doctors, nurses, pharmacists, teachers, employees in industry, government and transportation. Even judges go on strike, even though their job security is absolute. In such a strike-addicted country it is astonishing that there exists no formal legal mechanism to enable the government to structure the dispute in a way that is fair to all parties, that will minimize public disruption and danger to the economy and that still preserves the right to strike.

A nation that cannot reform is condemned to immobility. That is the sad condition of France today. Many businesses are uncompetitive; growth in the economy is nonexistent. In the absence of reform, growth and job creation are not on the horizon. No wonder the young are fleeing to Britain, Canada, Australia, the United States, wherever they can go and find hope.

Hope is the building block of a nation. It is not wealth that makes people happy but hope that they can make plans, that tomorrow’s prospects will be better than today’s. Where there is no hope, there is apathy and fear. Without the necessary legal mechanisms, French leaders could not effectively deal with the Air France crisis and the conflicting aspirations of the pilots and management.

Ronald Sokol is a member of the bar in France and the United States and practices law in Aix-en-Provence. His books include “Justice After Darwin” and “Federal Habeas Corpus.”